Health Protection Branch

Among the jurisprudential concerns that ought to be addressed in framing any legislative response are clarity, efficiency and fairness. Of initial importance, then, is that legislation provide the public with a clear and unambiguous statement of federal government concerns and policy. This is particularly important with respect to cannabis legislation because it affects a broad and largely young segment of the general population. The need for a clear message is heightened by the controversy and misinformation surrounding both the drug's effects and the present law. The public need not understand the technicalities or legal nuances of complex penal legislation, but it must be able to appreciate the central thrust of government policy and the consequences of violations.

One problem with the present control regime is that it no longer reflects current knowledge about the drug or, for that matter, current government concerns. The legislation conveys the message that cannabis use per se is a hazardous activity, a characterization that is belied by the personal experience of over three million Canadians. This contradiction between official legislative policy and individual experience has undercut the legitimate health and safety concerns posed by cannabis. Of equal importance, it is likely to have undermined the credibility of the criminal justice system, especially among the young.

Similar problems have arisen from the public's misunderstanding of both the present law enforcement approach to cannabis and the significance of a cannabis conviction. The impression has been created that arrests for simple possession of cannabis are decreasing and that the police are concentrating almost exclusively on traffickers. Many believe that if convicted of simple possession they will avoid a criminal record, while others believe an offender can have his criminal record for cannabis possession completely expunged. As indicated in Part 3 – The Empirical Bases of Cannabis Control Policy, these views are unfounded.

The present legislation no longer reflects current policy, confuses rather than emphasizes the real health and safety concerns posed by cannabis, has generated a misleading impression of the law, and may seriously threaten the integrity of the criminal justice system.

A second normative concern, the efficient allocation of criminal justice resources, has become increasingly important given competing demands on an already over-burdened criminal justice system. The earlier reported finding that "decriminalization" of cannabis in California resulted in decreased arrests for marijuana possession, but increased arrests for heroin and other drugs, is particularly germane. Any legislative option that reduces the $60-l00 million yearly cost of cannabis enforcement in Canada will likely result in increased enforcement of other, and hopefully more serious, offences. Thus, the first issue is whether the present allocation constitutes the most efficient and effectual use of a limited resource. No matter how this issue is resolved, efforts must be made to ensure the wisest allocation of those enforcement resources ultimately assigned to cannabis control.

Because responsibility for police activities falls on all three levels of government, federal, provincial and municipal, the federal government's ability to influence the allocation of resources among all criminal offences and within a specific criminal area is extremely limited. Changes in R.C.M.P. drug enforcement policy, federal drug prosecutors’ directives, and federal-provincial discussions may be of some limited assistance. However, it should be noted that attempts to focus aggregate police resources on the hard drugs and major cannabis trafficking cases have not been successful. Simple possession of cannabis now accounts for over 85% of all cannabis charges and about 80% of all adult charges under the Narcotic Control Act. The federal government cannot substantially alter this heavy concentration of resources on enforcement of consumption-related offences so long as it maintains a general prohibition against cannabis possession. The options discussed below vary both in terms of their likely enforcement costs and the extent to which they facilitate concentration of police attention on specific high-risk behaviours. If a blanket prohibition against all consumption -related behaviour is maintained, significant savings are not likely to be realized, nor is the public's protection from legitimate health and safety concerns likely to be enhanced.

A final, general normative concern relates to two matters traditionally subsumed within the term "fairness." The first, proportionality, deals with whether the legislative response to cannabis-related behaviour is appropriate relative to the response to other potentially harmful behaviours. In this regard, any legislative response must be considered in terms of the severity of its sanctions, the risks posed by the proscribed conduct, the allocation of enforcement resources, and the breadth of the relevant police powers. Proportionality, like the efficient allocation of limited enforcement resources, involves the comparison of cannabis use with other risk-producing conduct and the subsequent comparison of cannabis-related behaviours relative to one another. The seven year mandatory minimum sentence for cannabis importation is perhaps the most commonly cited example of disproportionality, and one that has provoked at least some judges to ignore the law and impose lesser, unauthorized sentences. Public opinion data indicate that there is broad support for remedying many such inequities.

A second aspect of fairness is equality of treatment. This fundamental principle of our legal system requires that like cases be treated alike. In the context of federal cannabis policy, this principle would require that the legal definitions of offences correspond to meaningful categories and distinctions. The present definitions of trafficking and constructive trafficking have been widely criticized for including within the distributional offences conduct that is functionally equivalent to simple possession. For example, persons who engage in conduct virtually identical to simple possession, such as the communal sharing of a marijuana cigarette, are liable to the same penalties as large-scale commercial traffickers.

The principle of equality of treatment must be tempered by a capacity to respond to individual cases. Traditionally, this has been accomplished by granting a broad measure of discretion to police, prosecutors and judges. But, there are legitimate concerns that this discretion be uniformly exercised in accordance with explicit or implicit cannabis policy goals. Even if the federal government provided a clearer statement of its policies and concerns, it could only indirectly influence this exercise of discretion. To directly address the issue, the present general prohibitions and high maximum penalties would have to be replaced with more specifically defined offences and sanctions.